Allan and Allan & Ors (No 2)

The Family Court of Australia, in the matter of *Allan & Allan and Ors (No 2)*, heard an application by the husband, Mr Allan, who sought to reopen proceedings and to injunct N Pty Ltd, a mortgagee, from selling certain properties. The husband, an undischarged bankrupt, also sought various orders relating to the management and financing of the properties, including a request for a further loan. N Pty Ltd consented to being joined as a party for the purpose of opposing the husband's applications and seeking costs.

The court was required to determine several legal issues. Firstly, whether to grant the husband leave to reopen the hearing to adduce fresh evidence, considering whether this evidence could have been presented earlier, the prejudice to other parties, and the overall impact on the interests of justice. Secondly, the court considered the husband's application to injunct N Pty Ltd from exercising its power of sale, and whether there was a basis to suggest the mortgagee had acted imprudently. Finally, the court addressed the husband's application to set aside a subpoena issued to HWL Ebsworth Lawyers, the solicitors for N Pty Ltd and the Receivers, for the production of documents relating to the sale of the properties.

Regarding the application to reopen, the court applied the principle that a party is generally bound by the conduct of their case. It found no adequate explanation for why the evidence sought to be adduced could not have been presented at the original hearing. The court also noted that the Receivers would suffer prejudice due to the late service of the material and that the admissible parts of the new evidence would not likely affect the result. Consequently, the application to reopen was dismissed. The court also dismissed the husband's application to injunct N Pty Ltd, noting the lack of payment into court or an undertaking as to damages, and that the husband had no basis to maintain caveats lodged by him. The subpoena to HWL Ebsworth Lawyers was also set aside.

The court ordered that the husband's applications filed on 17 August 2012 and 9 October 2012 be dismissed. It further ordered that the subpoena issued to HWL Ebsworth Lawyers be set aside. The husband was directed to take all necessary steps to lodge a Notice of Withdrawal of Caveats and to execute specific documents, failing which the Registrar of the Family Court of Australia was appointed to execute such documents on his behalf. Finally, the husband was ordered to pay the costs of the Receivers and N Pty Ltd.